### TEXEA'P~OEWEY GENERAL OF TElxAs

This opinion overrules Opinions 

### O-4020and 

### O-4798In so far aa there Is conflict. Hon. T.M. Trlmble, First Aaslatant State Superintendent of Public Inatructlon Austln, Texaa Dear Sir: glnlon 

### No.O-7323 : Legality of a superintendent of an Independent school dlstrlct to serve at the same .tlme on the County Board of School Trusteea. Article XVI, Sec. 40, Conat. of Texas. Ye have your recent letter asking this question: “18 it legal for a superintendent of an Independent school dlatrlct to serve on the County Board of School Truateea of hle county at the sametime?” Weanswer: “No.” Our reasons are as followa: Article XVI, Section 40, Texas Constitution, prohibits with certain exceptions not material here any person from holding, at the sametime, more than one civil office of emolument. Acounty school trustee holds a civil office of emolument. See Articles 

### 2676,2677,2678a,2681,2683and 

### 2687,Vernon’s Annotated Civil Statutes. If the superintendent of an Independent school district also holds a civil office of emolument, the reaaon for our answer Is apparent. The difficulty lies 1n:drawlng the line between a “public office” and a “public employment. ” The concepta are different but the dividing line 1s often obscured by looae language and by the Inadequacy of language aa a mediumof conveying clearout Ideas. The confusion 1s painfully evident In a paragraph In 

### 34Tex. Jur. p. 325, which attempta to dlatlngulah the two ldeaa. Our Opinion No. 

### O-4798cited several caaea from other atates, holding that school teachers and school principals are not “public officers.” The opinion concluded that a district superintendent llkewlae Is not an “officer” within the constitutional prohibition above mentioned, but that the tax aaaeaaor-collector of the district Is such an “officer” because our courts have ao held. pruitt v. Ert Iioae Independent School Dlatrlct (Comm.App.) 

### 84S.W. (2d)

.-

Hon. T.M. Trlmble, Page 2 (O-7323)

The Criminal Court of Apeals v. Stevenson, 111 Pac. 26 8247 In Oklahoma‘expreaaly held (Kay that a superintendent of an lndependent school dlatrlct la a mere employee hired under contract and la not an official within the meaning of an act to punish those whocommit extortion under color ofofflclal right. OurArticle 2781, Vernon’s Annotated.Clvll Statutes, preservea the confusion. It refera to such auperlntendents aa “employees”

.and as “executive officers.” The statute reads aa follows:

“The Board of Trustees of any city or town or any Independent school district mayemploy a superintendent, principal, teacher, or other executive officers In the schools therein for a term of not to exceed three yeara, provided that the Board of Trustees of an Independent school dlstrlct.whlch had a acholastlc population of 5,000 or more In the last preceding scholastic year mayemploy a superintendent, principal, teacher, or other executive officers In the schools therein for a term not to exceed five yeara. All twelvemonth contracts madeby trustees of Independent school districts with employees herein mentioned shall begin on July first and end on June 30th’of the year terminating the contract.” Wenowconciude that, despite the foregoing authorities, the decisions of our courts require the holding that a auperlntendent of schools In an Independent school district la holding an office wlthIn the meaning of Section 40, Article XVI, Constitution of Texas, and, to the extent that our Opinion No. o-4798 holds otherwise, such opinion la overruled. In Klmbroughv. Barnett, 55 S.W. 120, the SupremeCourt of Texas had before It this certified question:

“(1) Is the position of auperlntendent of the public schools of the city of Houston an office for which a suit maybe maintained In the district court?” The Court answered as follows: “Weanswer the first question In the affirmative. Theposition of superintendent of the free schools In the city of Houston Is an office, and the lawful Incumbent of It would have a right of action to recover It or Its emoluments In case he waaunlawfully deprived of the benefit.” The court later reaffirmed this holding In Bonner v. Belsterling, 138 S.W. 571. The Court of Civil Appeals at SanAntonio (Loa Angeles Independent School Dlatrlct v. Whitehead, 34 S.W. 2d 895) and the Court of Civil Appeals aa Austin (Temple Independent School Dlstrlct v. Proctor, 97 S.W., 26 1047) both regard the position of a superintendent of an Independent school district as an office for which suit maybe maintained. The Austin Court aays this point 1s settled law and cites the Klmbrough case. Since the courts hold that such superintendent holds an “office”, It la a “~1~11 office of emolument,”Hon. TiM. Trlmble, page 

### 3 (O-7323)

Youra very truly A'J3!ORNgyQENERALOFTEiXAS By s/Donald Qay Donald Gay Assistant W:BT:egw:wc

APPROVED

AUG

### 13,1946 s/ Carlo8 Ashley FIRSTASSISTANT ATTORNEY GENESAL
This opinion considered and approved In limited conference.